(dissenting). It is contended by appellants that ihe grant to the Oregon & California Kailroad Company is wiiliin the reservations of ihe grant to the Northern Pacific Kailread Company; (hat is, by filing its map of definite location before the Northern Pacific Company had fixed its line of road, either by a map of general route or definite location, it acquired priority of right, by the exceptions in the grant to the Northern Pacific Company. This is important to be considered. If true, it determines (he case in favor of appellants, without regard to the propositions considered by the majority of the court. If not true, it is yet important as bearing on these propositions. Section 3 of the Northern Pacific Kailroad act is as follows:
“Ami be it further enacted: that there be and hereby is granted to the Northern Pacific Railroad Company * * * for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast * ® ':s every alternate section of public land, not mineral, designated by odd numbers, to the amount of 20 alternate sections per mile on each side of said railroad line, as said company may adopt through ihe territories of file United States, and ten alternate sections per mile on each side of said railroad whenever it passe» through any state; and 'whenever on the line thereof the United States have full UUe. not reserved, sold. (¡ranted, or otherwise appropriated, and free from, pre-emption, or other claims or rights, at the, time the line of said ‘road is dej! niteli/ fixed, and a plat thereof filed in. the office of the commissioner of the genera/ land office; and whenever prior to said time, any of said sections, or parts of sections, shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof. * ® ®”
The reservation is in italics, and its letter supports the contention of appellants, and it is claimed that it is also supported by U. S. v. Northern Pac. R. Co., 152 U. S. 284, 14 Sup. Ct. 598. In opposition to the contention, appellees rely on Missouri, K. & T. Ry. Co. v. Kansas Pac. Ry. Co., 97 U. S. 491, and St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 11 Sup. Ct. 389.
Missouri, K. & T. Ry. Co. v. Kansas Pac. Ry. Co., 97 U. S. 491, was a suit which involved the title to lands claimed by two railroad companies under grants from the United States. The decision is by Justice Field, and is expressed with the usual clear and firm precision which characterizes bis opinions. The grants passed on had. reservations similar to those in the present case, and after considering their nature, and the objects of the reservations, he said:
*76“It was not within its language or purpose to except from Its operation any portion of the designated lands for the purpose of aiding in the construction of other roads.”
St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 11 Sup. Ct. 394, was also a contest between two'grants, and one of them the grant to the Northern Pacific Railroad Company. Mr. Justice Field said:
“It is also urged against the priority of the plaintiff’s claim that, hy the terms of the act making the grant to the Northern Pacific Railroad Company, all subsequent grants prior to the definite location of its road are excepted.”
And then, showing that the contention had no application to the case, he further said:
“But independently of this conclusion, we are of opinion that the exception in the case making the grant to the Northern Pacific Railroad Company was not intended to cover other grants for the construction of roads of a similar character, for this would be to embody a provision which would often be repugnant to and defeat the grant itself. Missouri, K. & T. Ry. Co. v. Kansas Pac. Ry. Co., 97 U. S. 491, 498, 499.”
Appellants, however, urge that these expressions are but dicta. If so, they nevertheless were confidently laid down, and in such way as to seem to be the conviction of the whole court. In St. Paul & P. R. Co. v. Northern Pac. R. Co. they were one of two answers to an explicit contention which was made; and in Missouri, K. & T. Ry. Co. v. Kansas Pac. Ry. Co. it was the purpose of the court to give such fullness of consideration and decision, not only as to what was granted, but the limitations on what was granted, and make the case determinative of controversies arising on both. In U. S. v. Northern Pac. R. Co. the controversy was of the ownership of certain lands which the United States claimed by reason of a forfeiture of a grani to the Oregon Central Railroad Company. The Northern Pacific Company claimed them under the grant contained in the resolution of 1870, which is set out in the opinion of the majority of this court. On the question of the lands being within the r¿solution of 1870, Mr. Justice Harlan, speaking for the court, said:
“But does the grant contained in the resolution of 1870 embrace the particular land in dispute? The act of 1864 granted to the Northern Pacific Railroad Company only public land, to which the United States had full title, not reserved, sold,. granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time its line of road was definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office. And hy the resolution of 1870 it was declared that if, at the time of the final location of the company’s main line or branch, there were not enough lands per mile within the prescribed limits, the deficiency could be supplied from lands, within ten miles beyond those limits, other than mineral and other lands, as excepted in the charter of the company, ‘to the amount of the lands that have been granted, sold, reserved, occupied by homestead settlers, pre-empted, or otherwise disposed of subsequent to the passage of the act of July 2, 18G4.’ It is, therefore, clear that no public land disposed of after the passage of the act of July 2, 1864, was intended to be embraced in the grant of May 31, 1870. The lands here in question were disposed of by the United States after the passage of the act of 1864, and before the passage of the joint resolution of May 31, 1870; for they are within twenty miles of the land of the Oregon Central Railroad Company, as shown on its map of definite location, filed January 31, 1872, and based upon the grant to it of May 4, 1870. It is true that the Northern Pacific Railroad Company on the 13th day of August, 1870, acting *77under tlie joint resolution oC May 81, 1870, Hied a map of the general route of its main lino from a point on Puget Sound; that, on the same clay, twenty sections per mile on each side of the line indicated on it were withdrawn from sale for the benefit of the company; and that this was followed by a map, filed September 18, 1873, of the definite location of its line from Kahuna to Tonino. But it is well settled that in respect to the public lands within, at least, common granted or primary limits, priority of grant, not priority of location, determines the question of ownership, as between parties claiming the same lands under different grants. Missouri, K. & T. Ry. Co. v. Kansas Pac. Ry. Co., 97 U. S. 491; U. S. v. Missouri, K. & T. Ry. Co., 141 U. S. 358, 369, 12 Sup. Ct. 13, 17; U. S. v. Southern Pac. R. Co., 146 U. S. 570, 598, 606, 13 Sup. Ct. 152, 157, 160.”
It is clear, therefore, that this case does not militate against St. Paul & P. R. Co. v. Northern Pac. R. Co., or Missouri, K. & T. Ry. Co. v. Kansas Pac. Ry. Co. The point was not presented in the same way, nor did it depend upon the same reason or reasoning. In the* latter cases the reservations were of future dispositions under the ordinary land laws. In U. S. v. Northern Pac. R. Co. (treating the resolution of 1870 as a grant as of that time) the reservations were* of prior dispositions. The difference is substantial, and demanded the different interpretations given. From a grant to a railroad company of undefined limits, it might be well to except lands to lx* disposed of under (he ordinary land laws, and not grants to other railway companies. The former might be consistent with the grant, —at any rate, could not impair it to au appreciable extent, or beyond what could be compensated by the lieu land provision, while it would not interrupt the settlement of (he country. The latter would be repugnant to the grant, and might defeat it utterly.
It follows, therefore, that the grant to the appellant road was not within the reservation of the grant to the Northern Pacific Company, and we are brought to the proposition discussed by my learned associates, and upon which I differ from them, to wit, did the grant to the Northern Pacific Company by the act of 1864 amount to such an appropriation of the lands in controversy as to preclude them from the operation of the grant to the Oregon & California road by the act of 1866? I state the question without regard to the Perham or other maps filed under the resolution of 1870; for I agree with the majority of the court that neither the Perham map, nor that resolution, nor the maps filed under it, have any bearing on the question to be determined, and that, if the circuit court gave effect below to such maps, it was error. But I am not sure that the circuit court did give effect (o them. There is some uncertainty in the statement of the learned judge who presided in that court, but I am not sure that there was any in his view of the ultimate and decisive question of the case.
Many phases of railroad land grant cases have been presented to the supreme court, and have been so firmly established as to become postulates. These are: That grants of that kind are grants in praesenti, in the nature of a float. That they do not attach to specific sections until identification by a map of definite location of the road. That, within what has been called “common granted or primary limits,” the date of the grant is the determinative fact in contending railway grants, not the date of *78location, — giving, if prior, priority of right; if at the same time, equality of right (that is, giving the land in equal, undivided moieties); in neither case can an advantage be secured by priority of location or of construction. That the condition of building the road is a condition subsequent, the right and grant continuing until forfeiture by or entry by the United States. And that the forfeiture or entry, in the absence of explicit legislative declaration, is for the benefit of the United States, not for the benefit of subsequent grantees. Applying these principles, and the principle that we have seen is likewise established, to wit, that subsequent grants to railroads are not within the reservations of prior ones, how should the question in this case be answered? The last principle expressed removes, as irrelevant to contests between railway grants, maps of general route or of definite location. They only have purpose to the objects of the reservations, to wit, settlers (homestead or pre-emption), not railroads. As to these (that is, as to railroads), we can only have regard to the date of the grant and the rights conveyed. I cannot see (and I say it with deference) that the consequence, though it inevitably follows, that, if the lands in controversy be deemed appropriated by. the Northern Pacific act, all lands situated north of the forty-fifth degree of latitude must have been withdrawn, is very embarrassing. To what is it embarrassing? To settlers,— to the occupation and development of the country under the land laws? Not at all. This is prevented by the reservations in the-grant. To other railroad companies? Grants to these was not a constant, but an occasional, policy, and dependent so much upon special circumstances as to require (certainly not necessarily to exclude) a right of selection of route in a wide territory. If this was to be primarily guarded against, or to be afterwards corrected, the remedy was in congress and obvious. But it does not inevitably follow that all the land north of the forty-fifth degree of latitude, was withdrawn. The grant had a limitation, and a practical one, too. The right was not to run the road anywhere north of the forty-fifth degree of latitude, but from a point on Lake Superior to a point on Puget Sound, by the most direct, eligible route. The supreme court said in U. S. v. Northern Pac. R. Co., supra:
“Although that act allowed the company to adopt the most eligible route, within the territory of the United States, north of the forty-fifth degree of latitude, it is clear that congress contemplated the construction of a main trunk line between Lake Superior and Puget Sound, which would not touch aDy point, ‘at or near Portland,’ and the western end of which would be east and northeast of a direct line between Portland and Puget Sound, and, in addition, a branch line leaving the main trunk line at some suitable place, not more than three hundred miles from its western terminus, and extending ‘via the valley of the Columbia river to a point at or near Portland.’ If the main line, as originally indicated by the act of 1361. had been established on the route between Portland and Puget Sound, the branch line could not have left the main line at some point not more than three hundred miles from its western terminus, and extended via the valley of the Columbia river to a point at or near Portland. The authority given to the company to adopt the most eligible route did not authorize it, by a map of general route, to cover an unlimited extent of country north of the forty-fifth degree of latitude. On the contrary, as said in St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 13, 11 Sup. Ct. 389, 393: ‘When the termini of a railroad are mentioned, for whose construction a grant *79Is marte, the extent of which is dependent upon the distance between those points, the road should ho constructed upon the most direct and practicable line. No unnecessary deviation from such line would he deemed within the contemplation of the grantor, and would he rejected as not In accordance with the grant.’ ”
I have said, as to contesting railroad grants, we do not regard maps, either of general route or of definite location, but only the date of the grants, and the rights conveyed by them. What rights are conveyed by them ? There, are two, — one ultimate and the other provisional. The ultimate; one gives a title to a certain number (20 in the territories, 10 in the states) of specific sections. The provisional gives a power of selection of these from a wider extent of territory. Is it no! a substantial and necessary right? May it exisi, in fullness, and with power to exercise, in two railroad companies at the same time? Manifestly not. May it exist in them in succession, or, rather, suspended in one until default in the other? If so, when comes default, and how? In the answer to the first of these questions, it must, of course, be conceded that congress has the power to grant a right in the public lands expectant or conditional upon the nonaccruing of another, and probably the reasons for its existence, or the embarrassments of a contrary view, have not been, and cannot be, put more strongly than the ability of counsel have put them in this case. But the same reasoning was urged in one of the first railroad land grant cases. Leavenworth, L. & G. R. Co. v. U. S., 92 U. S. 733. It was urged in the last. U. S. v. Southern Pac. R. Co., 146 U. S. 570, 13 Sup. Ct. 152. It formed the basis of the able dissenting opinions in both cases, but the majority of the court has firmly resisted it, — given always the same answer to it: That congress, in any of its grants, cannot be supposed to have thereby intended to include land previously assigned for another purpose, that it did not intend to cause or invite vexatious conflicts, and that it only concerned (he United States what became of land claims to which were abandoned or forfeited. In U. S. v. Southern Pac. R. Co., supra, the lands in controversy lay within the granted limits of the Atlantic & Pacific and Southern Pacific Companies, at the crossing of their lines as definitely located. Congress passed an act forfeiting the grant to the Atlantic & Pacific Company, and it was claimed by the Southern Pacific Company under its grant. The Southern Pacific Company filed its map April 3, 1871, — more than a year before the Atlantic & Pacific Company filed its map; and it was bonce contended that, if the title of the Southern Pacific Company was displaced, it was only conditionally displaced, — that is, displaced on condition that the Atlantic & Pacific Company should, by the final completion of its road, perfect its right thereto. The court, however, resisted the contention, and held that whatever title or right the Southern Pacific Company might acquire by a prior filing of its map was absolutely displaced when the Atlantic & .Pacific Company’s map was filed. “Illy as it may accord,” said Mr. Justice Brewer, “with the common-law notions of identification of tracts as essential to a valid transfer of title, it is fully settled that we are to construe these acts of congress as laws, as well as grants; that con*80gress intends no scramble between companies for the grasping of titles by priority of location, but that it is to be regarded as though title passes as of the date of the act, and to the company having priority of grant, and therefore that, in the eye of the law, it is now as though there never was a period of time during which any title to these lands was in the Southern Pacific.” Some misunderstanding may arise from the use of the word “attached” in this citation. It is manifest, however, the expression was only used to meet the language of the contention. It is manifest that there was no displacement of title. There never was any in the Southern Pacific Company to be displaced. There was an act of congress forfeiting the title of the Atlantic & Pacific Company, and the court held that this did not inure to the benefit of the Southern Pacific Company. The case was a controversy over the title to specific tracts. Does its principle apply to a controversy over the right of selection of specific, tracts? It is said that there is a passage in the opinion which forbids such application. It is as follows:
“Indeed, the intent of congress in all railroad land grants, as has been understood and declared by this court again and again, is that such grant shall operate at a fixed time, and shall take only such lands as at that time are public lands, and therefore grantable by congress, and is never to be taken as a floating authority to appropriate all tracts within the specified limits which at any subsequent time may become public lands. The question is asked: Supposing the Atlantic & Pacific Company had never located its line west of the Colorado river;, would not these lands have passed to the Southern Pacific Company, trader its grant? Veiy likely that may be so. The language of the Southern Pacific Company’s grant is broad enough to include all the land along its line, and, if the grant to the Atlantic & Pacific Company had never taken effect, it may be that there is nothing that would interfere with the passage of the title to the Southern Pacific Company.”
On a disputable proposition, it is natural to look to any intimation of- tbe supreme court, not only because of the supremacy of that tribunal, but because of tbe learning and abundant care which are bestowed upon its opinions. Yielding to this to the utmost, I cannot find anything authoritative in the passage. Such .questions are often put, and as often answered as the court answered that one,— or, rather, did not answer it, but only noticed, — conceding a possibility which it was not necessary to decisively affirm or deny. But the court proceeded to say that the result supposed by the question was neither intended nor expected by congress, and, if there had been no act of forfeiture, the Atlantic & Pacific could yet have constructed its road and secured the lands. “No power,” said the court, “but that of congress, could interfere with this right of the Atlantic & Pacific. No one but the grantor can raise the question of a breach of a condition subsequent.” This language and reasoning are applicable to every right under the granting acts, whether we consider the intention of congress, or its power to forfeit, and the effect of its exercise of the power, and it seems to me irresistibly so. By the express declaration of the act, the grants were made, and the rights and privileges were conferred upon and accepted by the Northern Pacific Railroad Company, on the condition that it should commence work on the road within two years from the approval of the act by *81the president, and complete and equip the whole road by the 4th of July, 1876; and the further condition that if the company should make any breach of the conditions of the grants, and allow the same to continue for upwards of one year, then at any time thereafter the United States might do any and all acts and things needful aud necessary to insure a speedy completion of the road. Sections 8 and 9. Subsequently a joint resolution was passed by congress, extending the time for the commencement of the road to July 2,1868, and for its completion to July 4,1878. 14 Stat. 355, § 2. On the 31st day of May, 1870, congress passed the joint resolution a.l ready referred to, giving the company power to make “branch line,” “main line,” and the latter “branch line,” hut neither taking away nor giving other rights. The grant to the Oregon & California Railroad Company was made on the 25 th of July, 1866. But the default in commencing the road within two years, or the default in building it, either under the original act or the resolution of 1870, was no ¡-oncem of the Oregon & California Railroad Company. Nor did the forfeiture of September 29, 1890, inure to its benefit. In other words, it got no rights by (other the default of the Northern Pacific, or the forfeiture by the United States. By what, then, did it get rights, and when? Only by its grant, if at all. But at the date of that the right of locating its road so as to take the lands in controversy existed unimpaired in the Northern Pacific Company, under the prior grant of 1864, and continued to exist, and did exist, unimpaired in that company January 29,1870, when the Oregon & California Company filed its map of definite location; did exist when that company built its road; did exist in 1871 and 1877, when patents were issued to iliat company. If not, by what was it taken away? Certainly not by any act of the United States, and the United States alone had the power. No act of the Oregon & California Company could do it. The default of the Northern Pacific Company, if there was any, was no concern of the Oregon & California Company. This company had no rights, except, as I have already said, those its grant gave it. It could get none from filing a map of definite location, or none by building its road, or impair none that the Northern Pacific Company received by its grant. This seems very plain, but may not the reasoning be still further extended? Whatever rights passed to the Northern Pacific Company by the act of 1864 could only he lost by abandonment, or by resumption by the United States on account of nonperformance of conditions. Abandonment is not claimed, and, if it were, abandonment of rights, as forfeiture of rights, has always been held not. to contribute to railroad grants. Were the rights of the Northern Pacific Company taken away by forfeiture? The majority of the court say no. My Brother ROSS’ language is:
“That tlie Oregon & California Railroad Company got nothing by the forfeiture of September 29, 1890, is clear; for the forfeiture was for the benefit of the government only. U. S. v. Southern Pac. R. Co., 146 U. S. 570, 13 Sup. Ct. 152.”
But, if not by that forfeiture, not at all; and the rights (and all of them) of the Northern Pacific Company still exist, and may yet be *82exercised. Is not this an irresistible conclusion from the cases? Do not all rights of the Northern Pacific Company, in complete fullness, exist until they shall he exercised or forfeited? Does not the right to build its road exist, and all rights necessary for that greater right also'exist? Are they not inseparable? Is not one the complement of the other? And, if so, does not the language of Justice Brewer in U. S. v. Southern Pac. R. Co., supra, accurately apply? I think so. He said:
“Again, there can he no question, under the authorities heretofore cited, that, if the act of forfeiture had not been passed by congress, the Atlantic & Pacific could yet construct its road, and that, constructing it, its title to these lands would become perfect. No power hut that of congress could interfere with this right of the Atlantic & Pacific. No one hut* the grantor can raise the question of a breach of a condition subsequent. Congress, by the act of forfeiture of July 6, 1886, determined what should become of the lands forfeited. It enacted that they be restored to. the public domain. The forfeiture was not for the benefit of the Southern Pacific. It was not to enlarge its grant as it stood prior to the act of forfeiture. It had given to the Southern Pacific all that it had agreed to in its original grant, and now, finding that the Atlantic & Pacific was guilty of a breach of a condition subsequent, it elected to enforce a forfeiture for that breach, and a forfeiture for its own benefit.”
It follows from these views that the decision of the circuit court was correct. There are other points urged by appellants, either for modification or reversal of the judgment, which, not being decisive of the merits of the case, I have not considered, in view of the effect of the opinion of the majority of the court.